Bolland, for the plaintiff, contended that this vessel, at the time of the trespass, was in his majesty's service within the meaning of the 47 G. 3. c. 69. s. 5., by which it was provided, that the act should not be extended to charge any vessels belonging to his majesty, or that shall or may be employed in his service, with any of the rates or duties to be imposed by the act. Chitty, contrà. This vessel was the private property of the master, and he would have been liable to contribute to the poor-rate in respect of his beneficial occupation of it. Rex v. Jones. (a) In that case, the appointment was nearly in the same terms. The exemption contained in the 47 G. 3. c. 69. is one to which the crown would be entitled. Here, too, the employment by the crown was partial; for the master might carry goods of a particular description; and, therefore, as to all purposes, except that of carrying the letters and public dispatches, the vessel was not in the employ of government. ABBOTT C. J. The statute contains two exemptions; first, all vessels belonging to his majesty; and, secondly, all vessels employed in his service. The case of Rex v. Jones is a good authority to shew, that the vessel, in this case, belonged to the captain, and not to the king; but it does not apply to the latter branch of exemption. It is impossible to say that this vessel was not employed in his majesty's service, when it came into Dover. The captain is appointed by the post-master general. The appointment of the captain states the vessel to be em (a) 8 East, 451. 1822. HAMILTON against Srow. ployed 1822. HAMILTON against STOW. ployed in his majesty's service; and he is directed to obey such orders as he shall from time to time receive from the agents of government. This latter stipulation is quite inconsistent with the right of employment being in the captain. Whatever is taken on board the vessel, besides the mails and dispatches, is by the express permission of government. I am clearly of opinion that this vessel was, at the time of committing the trespass, in the service of his majesty. Judgment for the Plaintiff. Friday, ORTON against BUTLER. A count stating THE declaration in this case contained three counts. that defendant had and received to the use of the plaintiff a certain sum of money, to be paid by the de fendant to the plaintiff upon request; and the non-payment upon re The two former of which were framed in case for a deceit by the defendant, in fraudulently asserting that he (having been employed in purchasing for the plaintiff a certain fish, and having purchased it for twelve shillings and sixpence,) had purchased it for one pound two shillings and sixpence, whereby he obtained the lastThe third count was quest, and that mentioned sum from the plaintiff. the defendant converted and as follows. And, whereas also the said defendant afterdisposed thereof wards, to wit, on, &c. at, &c. had and received for the to his own use, is bad upon demurrer. use of the plaintiff, a certain sum of money; to wit, the sum of ten shillings to be paid by the defendant to the plaintiff upon request. Yet the defendant not regarding his duty in that behalf, but contriving, &c. hath not, although often requested, paid to the plaintiff the last-mentioned sum of money, or any part thereof, but hath wholly omitted so to do; and on the contrary thereof, afterwards, to wit, on, &c. at, &c. converted and disposed disposed thereof to his own use. The defendant pleaded to the two first counts the general issue, and demurred specially to the last count. E. Alderson, in support of the demurrer. A similar question to the present came before the Court in Samuel v. Judin in Error. (a) There the ground of the demurrer was the misjoinder of a count like the present, with other counts framed in tort, and though the courts of Common Pleas and King's Bench both held that the objection was not sufficient, yet the judges seemed to intimate strongly, that the count, if particularly demurred to, would be bad. This is in fact, a count for money had and received, framed in tort. And if this be allowed, there will no longer be any distinction between case and assumpsit. The consequences of this will be productive of great inconvenience. A party may be thereby deprived of his plea in abatement, and his set off may be defeated by so framing the count. For the statutes of set off speak only of mutual debts. So again, if a cause of action be within the jurisdiction of an inferior court, as for instance, the London Court of Requests, and the plaintiff recovers under 51. damages, he may, by framing his count in the present mode, defeat the act, which would otherwise deprive him of his costs. For the statute 3 Jac. 1. c. 15. s. 4. is expressly confined to actions of debt, or upon the case in assumpsit. 1822. ORTON against BUTLER, Tindal, contra. This is substantially a count in trover. There is a delivery of money to the defendant, (a) 6 E. 335. 1 New R. 43. S. C. and 1822. ORTON against BUTLER. and a misfeazance on his part by converting of it to his own use. Instead of stating a finding by the defendant, it states a bailment to him, but that is quite sufficient. It may be, however, said, that as a count in trover, it is bad, not being sufficiently certain. For it only states a sum of money to have been had and received by defendant, and not certain specific pieces of money. But this is only a cause of special demurrer, and is not assigned as a cause in the present case. The count therefore, is in fact framed in tort, and the only objection is, that it is not framed with sufficient certainty. A similar count to the present was drawn in the case of Samuel v. Judin (a), and the Court then gave no opinion against its sufficiency. There are many actions quasi ex contractu, where a count may be framed, either in assumpsit or case, according as it may be most convenient to the plaintiff. E. Alderson in reply, was stopped by the Court. ABBOTT C.J. The law has provided certain specific forms of action for particular cases, and it is of importance that they should be preserved; we ought therefore to look with great jealousy to an innovation of this sort. The present count states, that the defendant had and received to the use of the plaintiff, a certain sum of money, to wit, ten shillings to be paid to the plaintiff, but which the defendant converted to his own use. It is contended, that this is a count in trover. Now, the action of trover is only maintainable for specific property; it will lie for so many pieces of gold (a) 1 New R. 45. or or silver, and in that case a defendant can only redeem himself by tendering to the plaintiff the same specific pieces. But in this case he clearly might do so, by returning an equal sum of money. There is, therefore, not merely a want of certainty in the count, but it states that which is not the subject of an action of trover at all. The demurrer, therefore, must be allowed. BAYLEY J. I think we ought not to accede to the innovation attempted in the present case. The statute of Westminster gave the action on the case, where there was previously no proper form in the register, and from Slade's case (a) to the present time, the remedy for money had and received has been either by an action. of assumpsit or debt. The question is now, whether the plaintiff can form a third; if we were to allow that, the provisions made in many instances by different acts of parliament would be evaded, and the instance to which we have been referred of the statute 3 Jac. 1. c. 15. s. 4., shews strongly the inconvenience that would result from such a decision. HOLROYD J. I am of the same opinion. It is admitted, that this is not in point of form well framed in trover, but it is argued that it is so in effect. But I cannot agree with that argument; no part of the count alleges the money had and received, to have been previously the plaintiff's property, or in his possession, and consistently with it, the defendant might have received the money from a third person. And there is nothing stated in the count to shew, that the plaintiff (a) 4 Rep. 92. 1822. ORTON against BUTLER. had |